Court of Appeals of Ohio, Twelfth District, Butler
WILLIAM WULF, EXECUTOR OF THE ESTATE OF ROLAND WULF, Appellant,
BRAVO BRIO RESTAURANT GROUP, INC., et al., Appellees.
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No.
& Blumenstiel, LLC, Braden A. Blumenstiel, for appellant
Reminger Co., L.P.A., Robert W. Hojnoski, for appellees
1} Appellant, William Wulf, appeals a decision of
the Butler County Court of Common Pleas granting summary
judgment to appellee, Bravo Brio Restaurant Group, Inc.
2} On January 2, 2016, 89-year-old Roland Wulf went
to dinner at Bravo Cucina Italiana in West Chester, Ohio.
Wulf was joined by his girlfriend, Mary Lou Caruso, his
daughter, Patricia Young, and his son-in-law, James Young
3} At some point during the evening, Wulf excused
himself to go to the restroom. Wulf walked to the restroom
through an aisle that had dining booths on one side and the
kitchen food counter on the other side. As Wulf was passing
between the kitchen food counter and the dining booths,
either on his way to the restroom or returning to his table
afterwards, someone suddenly backed away and bumped into him,
hitting his left leg. Wulf lost his balance, fell to the
floor, and fractured a hip. None of Wulf s dinner companions
witnessed the incident.
4} On March 31, 2017, Wulf filed a complaint against
Bravo Brio and several John Does, including an unknown
waitress whom Wulf claimed was the person who bumped into
him, causing him to fall. The complaint alleged that Wulfs
injuries were the result of the negligence of the Bravo
waitress and that Bravo Brio was liable under the doctrine of
respondeat superior. Wulf was deposed on November 10, 2017.
He passed away in February 2018. His son, William Wulf, as
the executor of the estate, was substituted as plaintiff and
proceeded with the lawsuit (the plaintiff in the litigation,
appellant herein, and the victim, Roland Wulf, shall be
referred to as Wulf).
5} Bravo Brio moved for summary judgment. Attached
to the motion was Wulfs deposition. Wulf filed a memorandum
opposing summary judgment, supported in part with affidavits
from Wulf, Caruso, and Young.
6} Wulf averred in his October 31, 2016 affidavit
that his fall was caused when a waitress holding a food tray
suddenly backed away from a booth on his left without looking
and bumped into him. The affidavit states that Wulf was on
his way to the restroom when the incident occurred. Wulfs
affidavit further states that (1) a female patron witnessed
the incident and told Wulfs daughter that the incident was
caused when a waitress backed away from a booth without
looking, (2) shortly after the incident, a waitress admitted
to Young that she had bumped into Wulf, and (3) the waitress
apologized several times to Caruso and Young.
7} In his November 10, 2017 deposition, Wulf
testified that his fall was caused when someone wearing a
Bravo uniform backed into him, knocking him to the floor. The
waitress then admitted working for the restaurant and
apologized to Wulf, saying "she was sorry it
happened" and "she was sorry she did this."
Wulf testified, "I knew that they did it, but I
couldn't prove it, basically, because I didn't see
her do it. * * * [I]f I would have seen her coming, I could
have pushed her, but I didn't." Wulf testified the
waitress was wearing a Bravo uniform, was in her 20s, was
5' 6'' tall and pretty slender, had brown hair,
and was not wearing glasses. Wulf was not sure whether he was
going to or returning from the restroom when the incident
occurred. He was, however, certain that the waitress was to
his left when she backed into him.
8} When asked to describe how the incident occurred,
Wulf testified several times that (1) as he was walking, he
noticed servers standing at the kitchen food counter to his
left, (2) as he was about a foot away from the servers, a
waitress suddenly backed away from the kitchen food counter
and bumped into him, and (3) he was looking ahead and did not
see her coming. Wulf testified that had he seen her coming,
the accident would not have had happened because he would
have pushed her out of the way. Asked whether the waitress
"was merely trying to back up, and as she was backing
up, you just happened to be literally right behind her as you
were walking past her; is that right?" Wulf replied
"Yeah." Wulf denied the fall was caused by his age.
Rather, Wulf stated it must have been a server because
"they was [sic] the only people up there that could have
done anything[, ]" and "she must have just turned
quickly because I didn't even see her."
9} In her January 9, 2017 affidavit, Caruso averred
that after she arrived at the accident location, a female
patron told her she had witnessed "the whole
accident." The affidavit did not detail what the patron
had witnessed. The affidavit further averred that a Bravo
waitress apologized to Caruso for causing the accident.
10} In his December 7, 2016 affidavit, Young averred
that a Bravo waitress approached him and told him several
times, "I'm so sorry." The affidavit further
averred that Young overheard a female patron stating
"she had seen the accident, and that a female Bravo
waitress had caused the accident by bumping into
11} On December 3, 2018, the trial court granted
summary judgment to Bravo Brio, finding that Wulf was unable
to prove negligence. The trial court noted that Wulf s
deposition and affidavit were inconsistent, contradictory,
and unclear as to what occurred. The trial court further
noted that Wulf s knowledge of the incident was based upon
hearsay statements from an unidentified waitress and an
unidentified female patron, as he never saw what happened and
did not see the waitress cause the incident. The trial court
[T]he Court is faced with a set of facts which provide that
an unidentified employee of Defendant caused Wulf to fall,
resulting in a broken hip. The testimony provides that Wulf
himself is unclear as to what, or how, his fall occurred
other than what he was told by this unidentified employee.
His testimony is bolstered by his relatives and girlfriend in
their individual affidavits, but again, the alleged
tortfeasor is not identified, nor are any alleged witnesses.
12} Wulf now appeals, raising six assignments of
error. For ease of analysis, we will address Wulf s second
assignment of error out of order.
13} Wulf generally argues the trial court erred in
granting summary judgment to Bravo Brio because when
construing all of the evidence most strongly in favor of
Wulf, as required by Civ.R. 56, there is a genuine issue of
material fact as to whether Wulf s fall and injuries were
caused by the negligence of the waitress employed by Bravo
Brio, and thus, whether Bravo Brio was liable under the
doctrine of respondeat superior.
14} In response, Bravo Brio generally argues that
Wulf failed to show there is a genuine issue of material fact
as to whether Bravo Brio owed or breached a duty of care to
Wulf because the open and obvious doctrine bars Wulfs claim.
Bravo Brio further argues that Wulf assumed the risk of
injury by walking closely behind the group of servers
standing near the kitchen food counter.
15} An appellate court reviews a trial court's
decision on a motion for summary judgment de novo,
independently, and without deference to the decision of the
trial court. Flagstar Bank, FSB v. Sellers, 12th
Dist. Butler No. CA2009-11 -287, 2010-Ohio-3951, ¶ 7.
Summary judgment will be granted only when there remains no
genuine issue of material fact and, when construing the
evidence most strongly in favor of the nonmoving party,
reasonable minds can only conclude that the moving party is
entitled to judgment as a matter of law. Civ.R. 56(C);
Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455,
16} The moving party bears the initial burden of
informing the court of the basis for the motion and
demonstrating the absence of a genuine issue of material
fact. Dresher v. Burt, 75 Ohio St.3d 280, 293
(1996). Once this burden is met, the nonmoving party has a
reciprocal burden to set forth specific facts showing there
is some genuine issue of material fact yet remaining for the
trial court to resolve. Id. In determining whether a
genuine issue of material fact exists, the court must answer
the following inquiry: "Does the evidence present a
sufficient disagreement to require submission to a jury or is
it so onesided that one party must prevail as a matter of
law?" Wilson v. Maple, 12th Dist. Clermont No.
CA2005-08-075, 2006-Ohio-3536, ¶ 18.
17} "Before ruling on a motion for summary
judgment, the trial court's obligation is to read the
evidence most favorably for the nonmoving party to see if
there is a 'genuine issue of material fact' to be
resolved." Byrd, 2006-Ohio-3455 at ¶ 12.
"Only if there is none does the court then decide
whether the movant deserves judgment as a matter of
law." Id. "[O]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment."
18} Before we address Wulf's assignments of
error, we summarily dispose of the parties' following
19} Wulf argues the trial court erred in granting
summary judgment to Bravo Brio because the court admitted in
its December 3, 2018 decision and entry that "an
employee of Defendant caused Wulf to fall, resulting in a
broken hip." Wulf asserts that "[t]he trial
court's admission, in and of itself, demonstrates the
existence of a genuine issue of material fact[.]" Viewed
in the context of the trial court's grant of summary
judgment to Bravo ...